The Rise of Modern European Dictatorships and EU’s Dual Standards on Human Rights

While most Western commentators focus on Brexit, something much more troublesome is taking place on the East end of the European Union (EU)—the rise of modern European “dictatorships.” Many former-communist countries, which are now members of the EU, are restoring the repressive practices typical of times gone by. In 2015, for instance, the President of the European Commission Jean-Claude Juncker famously greeted Hungary’s Prime Minister Viktor Orban with “Hello, dictator.” Whereas Juncker was probably trying to demonstrate his famous awkward sense of humor, the joke is on millions of EU citizens whose fundamental rights are consistently abused by East European “dictators” like Orban. Paradoxically, nonetheless, these modern dictators have more tools in their arsenal for targeting political and economic opponents compared to their communist predecessors—European law and international treaties. In other words, you have failed democracies which misuse national and supranational legal instruments alike for political vendettas and often—purges.

While Hungary is one of the examples which is often discussed in the media, by far, it is not the only EU state, which suffers from a democratic deficit. Although contexts differ, democratic values are also challenged in Bulgaria, Romania, Croatia, Slovenia, Slovakia, the Czech Republic, Poland, etc. What is striking and worrisome, however, is EU institutions’ dual standards on the rule of law and human rights, in particular.

All Eyes on Poland

If you have followed EU politics in the last two years, you would know that EU institutions remind us quite often of their utmost concern for the democracy and the integrity of the legal system of Poland. Notably, in 2015 Poland carried out reforms of the judiciary and the media sector, which were deemed as a threat to the rule of law by EU officials. Subsequently, the European Commission issued several recommendations about the rule of law in the country. In July 2017, it initiated infringement proceedings against Poland for breaches of Article 2 of the Treaty on European Union, which stipulates the key values of the EU—respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights among others. Commissioner Timmermans, whose portfolio includes the Rule of Law and the EU Charter of Fundamental Rights, has been quite vocal about Poland’s alleged violations.

According to Article 7 of the Treaty on European Union, which stipulates the precise mechanism for initiating and implementing infringement proceedings for breaches of Article 2, the European Council is the institution which has the final say in determining whether a serious and persistent breach by a member state has occurred. Regrettably, this is where the irony lies. The European Council is primarily composed of the heads of government of EU member states. Nevertheless, as mentioned above, many EU member states, especially those on the East end, are implementing repressive practices. In other words, it is troublesome that countries which have much bigger issues with the enforcement of the rule of law will be considering Poland’s commitment to Article 2 of the Treaty on European Union.

A brief comparison between Poland and Bulgaria, for instance, clearly demonstrates that EU values and freedoms are significantly more endangered in Bulgaria. According to Reporters Without Borders, Bulgaria is 109th in the world based on freedom of speech while Poland is 54th. According to the Corruption Perception Index, Bulgaria is the most corrupt country in the EU—Poland is 29th in the world whereas Bulgaria is 75th. According to the International Property Rights Index, which compares the level of protection of property rights around the world, Bulgaria is 85th while Poland is 41st. What these indexes tell us in simple terms is that:

In Bulgaria freedom of speech is 2 times more compromised than in Poland

Bulgaria is 2.5 times more corrupt than Poland

The property rights of Bulgarian citizens are 2 times less protected than the property rights of Polish citizens

Bulgaria’s structural issues in the adjudicative system, its communist legal heritage and its recent anti-democratic amendments to the Code of Criminal Civil Procedure surpass the negative Polish experience too.

Bulgaria’s Systemic Legal Nihilism

As mentioned above, the main reason why EU institutions argue that Poland has breached Article 2 of the Treaty on European Union is the judicial law reform of 2015, which allegedly compromised judicial independence. In Bulgaria, by contrast, not only judicial independence has been compromised all along, but also the very idea of rule of law is currently put to a test.

Indeed, the structure of Bulgaria’s prosecution coupled with the anti-democratic provisions of Bulgaria’s criminal law provide ample opportunity for abuse. Bulgaria, for instance, is the only country in the EU in which an accusation by the prosecution is not subjected to judicial oversight. There is even case law by the European Court of Human Rights against Bulgaria on that very matter, which Bulgarian governments never took into account. Moreover, in August 2017, Bulgaria implemented changes to its Code of Criminal Procedure, which were deemed anti-constitutional and violating the European Convention on Human Rights by the Association of Bulgarian Judges, the Association of Bulgarian Lawyers and 19 NGOs. Sadly, the government did not listen. Most of these amendments severely compromise the presumption of innocence, the right to fair trial, the right to defense, and the principle of equality before the law.

For instance, following the amendments, Bulgaria’s prosecution can accuse you but keep the investigation open indefinitely without bringing the case to court. This new power combined with the fact that the raising of the charges and the launching of the investigation are not subjected to judicial oversight creates the concept of the “eternally accused.” In other words, inconvenient people can be investigated for the rest of their lives without having the opportunity to defend themselves in court while being deprived of basic rights—for example, have their property confiscated, be forbidden to leave Bulgaria’s territory, be kept in the arrest, etc. In that light, it should be noted that in 2014 Bulgaria modified its laws to allow its Commission for Confiscation of Illegally Acquired assets to confiscate assets before a verdict is rendered. Hence, once the prosecution begins an investigation, your property is taken away from you: one more heavy-duty tool in Bulgaria’s “impressive” repressive arsenal.

Another striking example of the authoritarian-inspired changes in the Code of Criminal Procedure is the fact that an accusation can be based solely on anonymous witness statements as well as the fact that the defense cannot question the same witness in court. For a country with a communist heritage which has not cut its ties with its past, this implies that a person can be accused based on forged witness statements, without having the option to prove that the witness statements are indeed false or that the witness is untrustworthy.

Moreover, one of the new amendments permits the prosecution to target inconvenient judges—if the prosecution accuses a judge, the said judge has to give up their office until the investigation lasts. Nonetheless, as mentioned above, this investigation can last indefinitely.

Last but not least, Bulgaria’s Supreme Judicial Council is the body responsible for electing and appointing judges and prosecutors, for assessing their work, and for promoting them. This body has 25 members but 11 of them are appointed by the Parliament, which means that the executive branch can directly interfere with the work of the judiciary and the prosecution. Furthermore, Bulgaria is notorious for its lack of separation of powers and “behind the curtain” dealings among political parties which concentrates the power in the hands of few politicians.

EU’s Dual Standards on Human Rights and Compliance with the Treaty on European Union: A Case Study

Certainly, by itself, the above framework calls for “corrective” action by EU institutions against Bulgaria as it creates opportunities for abuse of political and economic opponents—for instance, EU institutions can threaten to activate Article 7 of the Treaty on European Union against Bulgaria the way they did for Poland. What is more troublesome is that such misuse of the law is not a theoretical possibility but occurs in practice too.

This is the point at which my narrative would get personal as my family has been subjected to unprecedented abuse by the Bulgarian prosecution for the past three years and a half. My dad used to be among the biggest taxpayers and employers in Bulgaria and he was ranked as the most influential person in the country by Forbes. In 2014, my father refused to succumb to corruption and transfer assets “for free” to a Bulgarian Member of Parliament. What followed was a classic example of what is known as “corporate raiding”: a tarnishing media campaign in media affiliated with the aforementioned Member of Parliament, false accusations, a national arrest warrant, a European Arrest Warrant, an Interpol Red Notice, and a freeze order on all assets. Needless to say, all of these were accompanied by abuse of process and refusals to appeal. Meanwhile, the assets are plundered by businesses affiliated with the aforementioned Member of Parliament and Bulgaria’s ruling party. If you are interested in the facts, you can read an overview here.

In this article, nevertheless, I want to focus on the inexplicable attitude of EU institutions which seem to be turning a blind eye to Bulgaria’s systemic violations of the Treaty on European Union and its misuses of European legal instruments—in other words, promoting dual standards on fundamental rights and the rule of law.

A. Let’s start with the European Parliament—its current President Tajani defined its role on Twitter as ‘the beating heart of EU democracy, ensuring its political legitimacy’

Unlike national parliaments which only have legislative powers, the European Parliament disposes of diverse mechanisms to promote the rule of law. The toughest measure, surely, is provided by Article 7 (1) of the Treaty on European Union, which allows the European Parliament to start proceedings against an EU member state if it violates Article 2 of the Treaty on European Union. There are, however, more benign instruments—for instances, the Petitions Committee of the European Parliament can act as a mediator between citizens whose rights are abused and member states and, furthermore, it can initiate proceedings against those states. Considering these powers, I thought it was important to formally inform the European Parliament of the persistent breaches of the Treaty on European Union by Bulgaria.

In 2015, I helped my father draft a letter of complaint detailing Bulgaria’s systemic breaches of fundamental rights: how innocent people were arrested based on falsified grounds, how a European Arrest Warrant was issued through abuse of process, how a protected witness of Bulgaria’s prosecution falsified my father’s signature on a document which the prosecution used to raise charges against my father (this was proven by court-appointed experts at this stage), how the banking license of the fourth largest Bulgarian bank was withdrawn in violation of case law against Bulgaria by the European Court of Human Rights, how people were threatened that they would be accused if they did not provide false witness statements, how several thousand people lost their money as a result of a “corporate raiding” scheme by Bulgaria’s government, how new anti-democratic laws are enacted ad hoc and applied retroactively, etc.

The letter was sent to:

-the President of the European Parliament

-all 14 Vice-Presidents of the European Parliament at the time

-the leaders of the biggest parties in the European Parliament at the time

-the Petitions Committee, which examines cases of infringement of European citizens’ rights by member states.

It is rather striking that only 2 of the 18 addressees representing “the beating heart of EU democracy” responded, which by itself raises many questions about the state of democracy in the EU. These responses, however, were formalist and did not address any of the issues, which were brought up, in any way. The Head of Cabinet of one of the party leaders sent a 1-line answer: “I would like to let you know however that the European Parliament does not have any competence in the field of the fundamental rights in the Member States as far as no European Union law is involved.” Certainly, the material accompanying our letter provides ample evidence of the systemic breaches of Article 2 by Bulgaria, so it is rather unclear on what grounds the “expert” who answered on behalf of the party leader concluded that no European Union law was involved.

The letter by the Petitions Committee was even more absurd. Firstly, we received a response almost one year after we submitted our letter of complaint. Secondly, the response advised my father to submit claims before the European Court of Human Rights. Ironically, in the very letter of complaint we sent we specified that my father had already submitted a claim against Bulgaria before the European Court of Human Rights. That did not prevent Bulgaria’s government from continuing the abuse in the meantime. Moreover, it is unclear how individual claims before the European Court of Human Rights can resolve Bulgaria’s systemic legal nihilism and breaches of the Treaty on European Union.Furthermore, as already mentioned, Bulgaria purposefully refuses to comply with case law by the European Court of Human Rights against it.

B. Playing “Chinese whispers” with the European Commission

The European Commission is by far the most powerful EU institution—when I was studying for my law degree in France, one of my professors defined it as “le bras armé” (armed hand) of the EU. It has multiple functions, including powers of investigation, prevention, and sanction against member states which do not comply with EU law.

When my father and I first sent a letter of complaint to the European Commission in June 2014, a colleague of mine with years of experience of communicating with it told me that I would feel like Asterix and Obelix in the famous scene “The Place that Sends You Mad” from The Twelve Tasks of Asterix. After 3 years of sending various letters of complaint against breaches of fundamental rights to the European Commission, I can indeed classify their responses into three categories:

Declaring they are not competent

Since June 2014, my father has sent various letters of complaint to the European Commission providing details of diverse breaches by Bulgaria—incorrect transposition of European Directives, violations of fundamental rights, victimization of political opponents, etc.—which paint a very gloomy picture of Bulgaria. Yet, the traditional response by the European Commission is to declare it is not competent to do anything by relying on Article 6 (1) of the Treaty on European Union, which states: “The provisions of the Charter shall not extend in any way the competences of the Union as defined in the Treaties.” In addition, it refers you to the competent national authorities and the European Court of Human Rights.

However, considering the particularities of Bulgaria’s criminal justice explained above, you cannot do much if the prosecution “accuses” you based on false witness statements and does not bring the case to court. Moreover, when it does this often and with many citizens, clearly you have evidence of a systemic problem, which Bulgaria is incapable of addressing by itself. As the Guardian of the Treaties, the European Commission is obliged to act if a member state does not perform its obligations under the Treaty on European Union. In fact, this is what the Commission is currently doing in the Polish case!

No response

While this approach is shameful, it is also standard practice. After receiving the traditional response du jour that the Commission is not competent to investigate breaches of the Treaty on European Union by a Eurocrat from DG Justice, in October 2015 my father reminded the Eurocrat who sent it that the Commission is the Guardian of the Treaties and as such should act if a member state breaches the Treaty on European Union. My father referred to the Commission’s very own Report on Progress in Bulgaria under the Co-operation and Verification Mechanism which identifies lack of judicial independence, organized crime and corruption as the key challenges Bulgaria has not overcome yet.Moreover, he provided further proof of abuse by Bulgaria, including witness statements about the illegitimate pressure on the judiciary by Bulgaria’s executive branch.

To this day, the Commission has not answered this letter.

Answering a question which was not asked// Not answering a question you asked

This is my personal “favorite” because it does make you feel like Asterix and Obelix in “The Place that Sends You Mad.” For example, in January 2016 my father sent a letter to the Commissioner responsible for monitoring Bulgaria in which he complained against the corruption, lack of rule of law and breaches of fundamental rights in Bulgaria. It was accompanied by concrete evidence of abuse. In the same letter, he asked a number of questions, including:

Does the pressuring of judges to violate Bulgarian and European law, including law pertaining to fundamental rights by Bulgarian authorities, constitute compliance with Article 2 of the Treaty on European Union?

If it is proven that Justice is not independent, how could a European citizen be defended against the arbitrary of the Executive?

Why the Commission at the time was showing more sensitivity towards what was happening in Poland than in Bulgaria?

The response can amaze any EU lawyer. In a letter we received several months later, my father was reminded that the Commission did not identify a violation of European Union law and that Article 7 of the Treaty on European Union was not aimed at addressing individual cases. Nothing was mentioned about Poland.

While this “response” did not answer any of my father’s queries, it left me with a few questions, such as:

How is the illegitimate pressuring of judges not a question of EU law? This is a severe breach of Article 2 of the Treaty on European Union, which Bulgaria cannot address by itself, as evidenced by the European Commission’s own reports under the Cooperation and Verification Mechanism!

Why are the anti-democratic changes in Bulgaria’s legislation as well as Bulgaria’s refusal to comply with case law by the European Court of Human Rights an individual case?

Why is the European Commission promoting dual standards on the rule of law and human rights (Poland v Bulgaria)?

Why Should This Matter to You?

First and foremost, enforcing dual standards on the rule of law, including human rights, sets a highly dangerous precedent and compromises the very identity of the European Union. All EU citizens have equal rights and are equal before the law. All EU member states have the same obligations under the Treaties too.

Turning a blind eye to systemic breaches of the Treaty on European Union in some member states raises concern about ententes behind the curtain: in other words, “we like some dictators more than others.” Why? No dictator should be welcome in Europe.

Finally, and this is a “technical point,” the employees of EU institutions, the Members of European Parliament, and EU Commissioners are all public servants paid with EU taxpayers’ money. It is outrageous that they permit themselves not to answer letters of complaint. It is also unacceptable that they permit themselves to play “Chinese whispers” with EU citizens subjected to abuse. This is not just a question of courtesy, but a question of performing one’s duties.